Oakland Public Works Routinely Violates Migratory Bird Treaty Act and CEQA

Each year the City of Oakland, Public Works Department, removes, by their own account, several hundreds of mature trees throughout the City of Oakland. Approximately 25% of all trees removed by the City are located in the area north and east of 580 in the Oakland hills. The remainder of trees are within the flatlands. Oakland trees are removed either by the City within the City right-of-way or by private parties that obtain discretionary, tree removal permits from the City. These trees, public and private, are removed during all times of the year, including during the bird nesting season which occurs between approximately February 1 and August 31.

Unfortunately, the Public Works Tree Services Program, which is managed by Deputy Public Works Director, Brooke Levin, has consistently violated state and federal law that protect nesting birds by removing trees on City right-of-way with nesting birds and active bird nests during the nesting season or by permitting the removal of trees by private parties without any conditions requiring the property owners to comply with the Migratory Bird Treaty Act or the State or Federal Endangered Species Act to protect threatened or endangered birds.

The Federal Migratory Bird Treaty Act of 1918 (MBTA), which is administered by the California Department of Fish and Game and the United States Fish and Wildlife Service, implements various treaties and conventions between the U.S. and Canada, Japan, Mexico and the former Soviet Union for the protection of migratory birds. Under the Act, taking, killing or possessing migratory birds is unlawful. Over 800 birds are currently on the protected list--this includes a significant number of birds in the San Francisco Bay Area.

Unless permitted by regulations, the Act, among other prohibitions, provides that it is unlawful to pursue, hunt, take, capture or kill; attempt to take, capture or kill; possess, any migratory bird, part, nest, egg or product. To enforce the Act, authorized Department of Interior employees may arrest a person violating the Act and a person, association, partnership or corporation is guilty of a misdemeanor and subject to a fine up to $500, jail up to six months, or both.

One might ask why the City of Oakland is subject to such laws in urban areas like Oakland. It is because birds know no bounds and they fly. California and particularly the San Francisco Bay Area are integral routes along the Pacific Flyway that supports the migration of millions of birds, many of whom nest in the San Francisco Bay Area, including within urban areas adjacent to San Francisco and Suisun Bays.

The Deputy Public Works Director, Brooke Levin, and the current City Administrator, Dan Lindheim, have been notified by members of the public that the Tree Services Program she administers is not following state and federal laws related to the Migratory Bird Treaty Act. A Public Records Act request of Ms. Levin reveals the City of Oakland has no active or ongoing training program to inform its staff of the requirements of the Migratory Bird Treaty Act, routinely removes trees without any established protocol to survey trees by a qualified biologist or ornithologist prior to the removal of trees, and has failed to implement construction work windows to avoid the nesting season or work arounds to prevent the removal, disturbance and abandonment of nests due to tree removal activities and/or other Public Works construction activities in the City. Other public entities, such as the California Department of Transportation and the San Francisco Public Utilities Commission, routinely implement strong measures to protect nesting birds and have even curtailed or delayed construction activities to ensure compliance with the MBTA.

 

These measures to protect migratory birds are often included as part of avoidance and minimization measure or even mitigation under the California Environmental Quality Act (CEQA). Caltrans and the SFPUC also routinely replace the removal of trees at a 3:1 or even higher ratio to offset the cumulative visual and biological effects of tree removal. However, the City of Oakland has never undertaken a comprehensive CEQA review of its tree removal program and its tree removal permit program to assess the cumulative effects of removing hundreds of mature trees on an annual basis, over many years, and to ensure its actions are consistent with the MBTA and other environmental laws such as the State and Federal Endangered Species Acts. Instead, the City has piece-mealed the removal of individual trees by generally declaring them to be exempt from the requirements of CEQA or not conducting any CEQA review at all. The City has routinely failed to document in writing its determinations justifying the removal of trees or its rationale for exempting CEQA review.

It is hard to understand how the City of Oakland can simply ignore the requirements of CEQA. Particularly since its tree removal program qualifies as a project under CEQA, the City exercises discretionary permitting authority in issuing tree removal permits, and the program has the potential for direct, cumulative affects to wildlife, as well as affects to visual and aesthetic resources, and the removal of trees within and outside the public right-of-way without adequate conditions routinely results in the violation of the MBTA by City staff under Ms. Brook's leadership, as well as by private parties. 

Once again, Brooke Levin seems to think that she and her staff in the Department of Public Works are above the law. This seems to be a recurring theme with her. Loss of staff or reductions in staffing, as she seems to believe, are not an excuse to skirt or violate state and federal laws or fail to adequately document the legal rationale for removing trees in the City of Oakland as required by the City's tree ordinances.

As we move towards the nesting season and the chainsaws of public works begin trimming trees or removing trees, Brooke Levin and the City should be aware that it could be subject to complaints to the California Department of Fish and Game and the United States Fish and Wildlife Service for violating the Migratory Bird Treaty Act. Our new Mayor, Jean Quan, would do well to review the management and oversight of the Tree Services Program.

Bird Photos: Living with Wildlife http://blogs.marinij.com/living_with_wildlife/

City of Oakland Tree Services Program Mismanaged and in Disarray

For many communities, street trees are a significant asset that make our neighborhoods more livable, provide character and increase property values. Some of the benefits of street trees include:

• Creating safer walking environments by providing distinct edges to sidewalks
• Shading pedestrians and protecting them from the rain, sun and heat
• Giving interest and scale to pedestrian environments thereby encouraging walking
• Reducing the heat of asphalt and its contributions to global warming
• Lowering urban air temperatures and reducing energy costs to cool homes and businesses
• Capturing and filtering rainwater and urban runoff
• Calming traffic by framing streets
• Providing more attractive shopping environments
• Absorbing pollutants and emitting oxygen
• Reducing the appearance of blight by softening hard urban edges

Oakland's name--Oak Land--derives from the oak-studded hillsides that were once logged to build communities in the San Francisco Bay Area. Oakland's most prestigious neighborhoods, such as Rockridge, Claremont, and Piedmont are marked by their mature, tree-studded streets. The distinction between more affluent and less affluent neighborhoods can often be made by the presence or absence of street trees. Realtors often note the importance of street trees for residents looking to locate in Oakland.

Planting, maintaining and protecting street trees should be a priority for the City of Oakland. Yet, the Tree Services Program in the Department of Public Works, which is under the management of Brooke Levin, Assistant Public Works Director, is mismanaged and in disarray. The following is a story recounted to We Fight Blight by a frustrated resident who faced the indiscriminate chainsaw of the tree services program, unresponsive city employees and defensive city managers.

One recent evening, I got a call from my neighbor asking if I had noticed the "No Parking" signs posted on several street trees on 65th Street in North Oakland. She wanted to warn me that the trees appeared to be slated for removal at 776 and 794 65th Street. I walked outside with a flashlight and sure enough there were several "No Parking" signs that had apparently appeared very late in the day. None of the nearby neighbors had any knowledge as to who posted the signs. The signs themselves gave no indication as to who would be cutting the trees down, nor was there any contact information for those who had questions. None of the neighbors, including myself, were provided any kind of advance notice either by flyer or by letter. Because one of the trees provides significant shade to my rear yard and provides a buffer from the busy street, I was very concerned. I strategically parked my car under the tree to prevent it from being cut down.

Suspecting it was PGE, which had recently come through and trimmed the trees to protect the power lines, I awoke the next morning and was on the phone at 7:00 am. After approximately 40 minutes of calls to PGE, I was able to reach the PGE area arborist, who assured me the trees were not targeted by PGE for removal. In fact, the PGE arborist confirmed PGE had already trimmed the trees in question and they had not found any cause to remove the trees as they posed no imminent danger to their power lines.

As the morning wore on, I looked online for the City of Oakland Tree Services Program and attempted to contact Robert Zahn, the Tree Supervisor II. When that failed because he was out of the office, I tried to contact Herbert Flores, Tree Supervisor I. Mr. Flores did not answer his phone, so I left him a message indicating it was urgent that he contact me. I made repeated calls to Mr. Flores to no avail. I also left a message with Gay Luster, Administrative Assistant I, that the matter was urgent as the trees were scheduled to be cut that day and I needed to speak to Mr. Flores.

As I systematically tried to contact anyone of authority in the Tree Services Program, I heard the rumble of a Public Works truck rolling down 65th Street which promptly stopped at 794 65th Street and began setting up to cut down the tree. Cell phone in hand, I ran down the street and informed the Public Works staffer that there had been inadequate noticing to remove the trees and that I was trying to contact his supervisor, Mr. Flores. I requested that he not cut any trees until the matter was discussed with a supervisor. I was promptly told, " I really don't care what your problem is, my job is to cut this tree down." I repeatedly requested that he stop and contact Mr. Flores. He refused and continued staging his truck and equipment to remove one of the trees on 65th Street.

At this point, I finally managed to connect with Mr. Flores, Tree Supervisor I, and informed him that their had been inadequate noticing per the city's tree ordinances and that the trees could not be cut down until the city complied with its own noticing requirements. I also informed Mr. Flores that the trees in question had nesting birds and that the federal Migratory Bird Treaty Act prevented the City of Oakland from disturbing nesting birds. Although he is a supervisor, Mr. Flores was seemingly unaware of both the procedural requirements for public noticing in the city's own tree ordinances and of the requirements of the Migratory Bird Treaty Act. He even asked me what sections of the tree ordinances contained the noticing requirements. I then asked Mr. Flores who owned the trees. He was unable to answer the question. I told him that ownership of the trees was critical because it governed the public noticing requirements. But he seemed oblivious and he refused to stop the tree removal despite my repeated requests saying that trees were scheduled to be removed and he would not do anything to stop their removal. By this time his crew had set up the cherry picker and had begun cutting one of the trees. I then tried to contact the Public Works Director to no avail.

I then contacted the City Administrator's Office since no other person of authority was available in Public Works. I explained my dilemma and requested of the receptionist to speak with the Assistant City Administrator. The receptionist refused. I repeatedly asked the receptionist who the Assistant City Administrator was and she repeatedly refused to tell me. She informed me that I needed to speak with Tree Services Program even though I had already told her that I could not reach anyone of authority within Public Works. I had to demand multiple times that the receptionist provide me with the name of the Assistant City Administrator, who by the way is Margaret Lin, and even threaten the receptionist with a complaint to the City Administrator before she provided me the contact information of the Assistant City Administrator.

All the while, the Public Works staff began to cut down the tree even though I was standing directly within the work zone, which was improperly screened off. The Public Works staff person began to remove the tree while in a city vehicle, operating a chainsaw, and smoking with a cigarette dangling from his lips. By this time, there were several residents who had gathered. A nearby neighbor who works for the California Department of Fish and Game approached and informed the work crew that it appeared they were violating the Federal Migratory Bird Treaty Act due to nesting birds. I began to photo document the removal of the tree.

Eventually, with all of the commotion the Oakland police were called in and responded to the scene .The responding officer directed the tree removal crew to stop their work and requested that Mr. Flores, Tree Supervisor I, come to the job site. Some thirty to forty minutes later, Mr. Flores showed up. After intense discussions with the Oakland police, the Public Works staff ceased their tree removal activities, packed up their truck and moved on. The Oakland Police requested the Public Works Staff leave so that further discussions on the tree removal procedures could take place with the appropriate managerial staff at the City of Oakland.

When Mr. Flores came to the job site I asked him several questions including: (1) who owns the trees; (2) what is the appropriate public noticing; (3) does the city follow the requirements of the Migratory Bird Treaty Act; (4) why is the city using outdated "No Parking" signs; and (5) who conducted the tree hazards analysis to justify the removal of the trees? Mr. Flores would not answer  the questions and refused to discuss the details of the tree removals. He informed me that I would need to submit a Public Records Act request to the City Attorney if I wanted any information.

Without any  prompting, Mr. Flores walked up my driveway and began to view the tree at 776 65th Street, which is visible from the street and sidewalk. I informed him that he was trespassing on my property and requested that he and his work crew not use my property to evaluate, trim or remove the tree. I told him that it was illegal and inappropriate, unless he had the permission of the property owner, for him or his work crew to access private property. Mr. Flores shrugged his shoulders and said "We don't know where the property lines are."

The tree at 794 65th Street was partially cut and remains unbalanced. The adjacent homeowner reports that he has contacted the City Public Works multiple times to find out about the status of the tree removal and informed me the city refuses to discuss the tree removals and refuses to return his calls. While Ms. Levin and Ms. Lin did eventually meet with me to further discuss the tree removals, they have yet to answer the most basic questions: "Who owns the trees?"

This residents' frustrating experience with the Public Works Tree Services Program highlights the mismanagement of city staff and programs, and the lack of transparency and responsiveness by city management to address resident's concerns. In this case, there were many procedural and substantive failures by the Public Works Division. The question is whether two highly paid managers, Brooke Levin, Assistant Public Works Director, and Margaret Lin, Deputy City Administrator, are willing to face up to the failures and address them in ways that actually restore faith in our local government. Their current track record, which largely involves ignoring the problems, is not very impressive.

We Fight Blight will continue to deconstruct this incident and the breakdowns in an attempt to highlight just one example of how mismanaged our local government really is.